Panchal v R; R v Panchal
[2014] NSWCCA 275
•26 November 2014
Court of Criminal Appeal
New South Wales
Case Title: Panchal v R; R v Panchal Medium Neutral Citation: [2014] NSWCCA 275 Hearing Date(s): 13 October 2014 Decision Date: 26 November 2014 Before: Leeming JA; Fullerton J; Bellew J Decision: In the appeal against conviction:
1. Refuse leave to appeal in respect of ground 2.
2. Grant leave to appeal in respect of ground 1 and (to the extent necessary) ground 3.
3. Appeal dismissed.
In the Crown appeal:
1. Crown appeal against sentence upheld.
2. The sentences imposed in the District Court on 18 October 2013 are quashed and in lieu thereof the following sentences are imposed:
Count 2: Fixed term of imprisonment for 12 months commencing on 31 May 2013 and expiring 30 May 2014.
Count 3: Fixed term of imprisonment for 6 months commencing on 31 May 2013 and expiring on 30 November 2013;
Count 4: Fixed term of imprisonment for 16 months commencing on 31 July 2013 and expiring on 30 November 2014.
Count 1: Imprisonment for 7 years commencing on 31 May 2014, and expiring on 30 May 2021 comprising a non-parole period of 4 years and 6 months expiring on 30 November 2018 and a balance of term of 2 years and 6 months.
This results in an effective sentence of 8 years with a non-parole period of 5 years and 6 months.
Catchwords: CRIMINAL LAW - Appeal against conviction - trial before judge alone - appellant convicted of sexual assault and indecent assaults - whether verdicts unreasonable - whether error in complainant giving evidence pursuant to Criminal Procedure Act 1986 (NSW), ss 306U and 306ZB - whether error in discounting appellant's prior good character - appeal against conviction dismissed.
CRIMINAL LAW - Crown appeal against sentence - whether error in imposing wholly concurrent sentences - whether sentences unreasonable or unjust - Crown appeal allowed.Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61M, 66A, 405I
Crimes (Child Victim Evidence) Amendment Act 1990 (NSW)
Criminal Appeal Act 1912 (NSW), ss 5D, 6
Criminal Procedure Act 1986 (NSW), ss 132, 133, 306M, 306P, 306U, 306ZB, 306ZJ
Evidence (Children) Act 1997 (NSW)Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
Ingham v R [2014] NSWCCA 123
JT v R [2012] NSWCCA 133
LG v R [2012] NSWCCA 249
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Pearce v R [1998] HCA 57; 194 CLR 610
R v Dousha [2008] NSWCCA 263
R v Slack [2004] NSWCCA 128
SKA v The Queen [2011] HCA 13; 243 CLR 400
Smith v R [2011] NSWCCA 163
W v R [2014] NSWCCA 110Category: Principal judgment Parties: Jayeshkumar Dashrathal Panchal (Appellant/Respondent)
Crown (Respondent/Appellant)Representation - Counsel: Counsel:
G James QC / P Lange (Appellant/Respondent)
P Ingram SC (Crown)- Solicitors: Solicitors:
Murphy's Lawyers Inc (Appellant/Respondent)
Solicitor for Public Prosecutions (Crown)File Number(s): 2011/199816 Decision Under Appeal - Court / Tribunal: District Court - Before: English DCJ - Date of Decision: 31 May 2013 - Court File Number(s): 2011/199816
JUDGMENT
THE COURT: Mr Jayeshkumar Dashrathal Panchal seeks leave to appeal from his conviction after a trial, before a judge of the District Court sitting alone, of three counts of aggravated indecent assault contrary to s 61M(1), and one count of aggravated sexual assault contrary s 61J(1) of the Crimes Act 1900 (NSW). An offence contrary to s 61M(1) carries a maximum penalty of 7 years imprisonment and attracts a standard non-parole period of 5 years. An offence contrary to s 61J(1) carries a maximum penalty of 20 years imprisonment and attracts a standard non-parole period of 10 years. All offences were committed on 24 February 2011, upon the same victim whilst she travelled on the train from Springwood to Wentworth Falls. Mr Panchal was the guard on that train. Although leave is required (because not all of the grounds raise a question of law), it is convenient to refer to Mr Panchal as the appellant when dealing with his appeal against conviction.
The Crown appeals, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against the sentences imposed by the trial judge. A sentence of 5 years imprisonment with a non-parole period of 3 years, dating from 31 May 2013 (the conclusion of the trial), was imposed in the case of the aggravated sexual assaults contrary s 61J(1). Periods of imprisonment of 3, 6 and 9 months were imposed for the aggravated indecent assaults contrary to s 61M(1). These sentences were also to date from 31 May 2013, and so were wholly concurrent with each other and the sentence imposed for the aggravated sexual assault.
The circumstance of aggravation for all counts, which is central to grounds 1 and 2 of the appeal against conviction, as well as to the Crown appeal, is the fact that the complainant was a young woman of "moderate" intellectual disability. Where a victim has cognitive impairment, ss 61J(2)(g) and 61M(3)(e) provide this as a circumstance of aggravation.
"Moderate" in this context bears a technical meaning. The uncontroversial evidence was that on many scales, she functioned at a level lower than 99.9% of her age peers, with an IQ between 35 and 49, and in many respects, including communication skills, had the age of a young child. The forensic psychologist called by the Crown said that the complainant's disability:
"would be obvious to a reasonable person within a few moments of contact with her. She speaks slowly, in basic language, and has difficulty expressing herself. She had difficulty in giving a detailed history of her life. She is very concrete in her answers and immature in speech construction. She also had an immature demeanour in social interactions, and is inappropriately giggly and compliant."
Factual background
On the afternoon of Thursday 24 February 2011, the complainant travelled home from her special school near Springwood to Wentworth Falls. Station CCTV footage tendered at the trial shows her boarding through the rear doors of the last carriage of the train at 3.28pm, and walking along the platform at Wentworth Falls at 4.08pm after leaving the train. The guard's compartment was at the very end of the train. The footage shows her shaking hands with the guard immediately before she boarded the train. The cameras at Wentworth Falls did not capture her image as she left the train, but she is shown waving, either to the guard or someone else in the train or on the platform, as the train drew out from the platform.
An internal door, with a tinted glass window, separated the guard's compartment from the rest of the carriage. It was contrary to RailCorp policy for passengers to travel in the guard's compartment. However, there was no dispute that the complainant had travelled with the guard in his compartment for the conclusion of her journey. How she came to be in the compartment was disputed.
The complainant walked home from the station, and was driven by her father to a doctor's surgery, where she had an appointment. In the waiting room, and in the surgery carpark after the appointment, she told him that she had been touched by the guard "down there". The complainant also said that the railway man had told her she wasn't to tell anyone what had happened, that she wasn't to say anything. When she returned home that evening, she made a more detailed complaint to her mother, consistent with the particulars of the charges as they were led at trial. The mother called the police, and the complainant told a (female) sergeant that the guard had invited her into his compartment and touched her. A police officer attended on the family's house that evening and secured the complainant's clothes, which were placed into individual bags, and taken to Katoomba Police Station. Police made RailCorp aware of the incident that evening, and the duty security controller called the appellant at 9:30pm that evening. That call was recorded, and the transcript placed into evidence.
The complainant was herself interviewed for slightly more than 3 hours on the following afternoon, Friday 25 February 2011, by a police officer in the Joint Investigation Response Team. That interview was video-recorded and played at trial (its transcript is in the appeal papers). There was a second video-recorded interview, made on 29 March 2011, which was much shorter, and also played at the trial.
In her first interview the complainant said that she was standing in the carriage, because all the seats were taken, when the guard came to her, held her hand and pulled her into his compartment, saying "Come, come here. Hold my hand", "I really love you", "Come for a date" and "Stay on the train with me until to get to Katoomba". While he was saying this, she said he was feeling her private parts.
The count of aggravated sexual assault was that the appellant penetrated the complainant's vagina with his finger. The complainant described this in her first interview, stating that he had pulled down the zipper on her pants, and that his fingers were inside her clothes, and not touching her skin, but "the private part":
"Q. His fingers touched your private part?
A. Yeah, yeah. Oops.
Q. And what do you call the private part?
A. Ah, the gina.
Q. OK. And what ... did the fingers do on your gina?
A. Ah, it was, it was starting to sting and burn.
Q. OK. How come it was stinging and burning?
A. Ah, because, because I, I because he had his fingers in there and it was starting to, inside the gina was starting to burn ---
Q. OK.
A. --- when, he had his fingers in.
Q. So he had his fingers inside your vagina ---
A. Yeah.
Q. --- and you're telling me it started to sting and burn.
A. Yeah.
Q. Do you know how far his fingers were in your vagina when it started to sting and burn?
A. Ah, ah, I don't know.
Q. That's OK.
A. I don't know.
Q. OK. What else could you feel? You could feel stinging and burning.
A. Yeah.
Q. What else could you feel?
A. It, It was starting to be sore and uncomfortable when, when he was having his fingers inside."
The counts of aggravated indecent assault were that the appellant had touched the complainant's right breast and her left breast, and that he had put his hand inside his own pants and held his erect penis close to her groin. The complainant described the appellant touching both of her breasts in her first interview. Each assault was, according to her description, different. First, she said that the appellant held his hand under the complainant's shirt and over the outside of the bra on her right breast:
"Q. You said you had a bra on.
A. Yeah.
Q. Was his hand on the outside of the bra or on the inside of the bra touching your breast or something else?
A. Ah, outside the bra.
Q. OK.
A. Yeah.
Q. All right.
A. Yeah.
Q. And on the other side on your left breast ---
A. Yeah.
Q. --- he had his hand on the outside of your T-shirt is what you said, is it?
A. Yeah."
The complainant described the event of him holding his penis in a further interview she gave on 29 March 2011:
"Q. ... What could you see?
A. I, I didn't saw it. I, I felt it. Yeah. I only, I felt it. Yeah.
Q. Tell me more about how you felt it.
A. He, he was, I, I felt it because he, 'cause he was moving around in, I, I felt it when he was moving with his half of his arm went in his pants.
Q. Yeah.
A. And I felt his hands, I felt his hand moving to, to, to, you know, like a, like a cardboard."
It was not suggested by the appellant that, if the complainant's evidence was accepted, it was insufficient to establish the conduct constituting each of the counts on the indictment. Accordingly, it is not necessary for present purposes to reproduce or otherwise summarise the detail of the balance of the complainant's account; it suffices to say that it proceeds in the same linguistic style as may be seen from the passages reproduced above, using very simple but direct language.
Turning to the near-contemporaneous accounts given by the appellant, as noted above, he was called by the duty security controller, Mr Chris Kalogeropoulos, at around 9.30pm that evening. After confirming that he had been the guard on the relevant train, this conversation occurred:
"CK: Did you have any incidents on that at all up at Springwood or Wentworth Falls, an assault or anything?
JP: Incident? No.
CK: No? No incidents? Alright.
JP: There were two angry customers knocked the doors why the train is running slow and I think some naughty boys also.
CK: Right, okay.
JP: And then (inaudible) I just - there are two big girls and I just assisted one disabled girl from - from, I think, I don't know from where she got on but she knocked, she needed to get off at Wentworth Falls and she, I think she is upset with those boys.
CK: Okay, alright.
JP: And I just assist her.
CK: Okay.
JP: There was no place to seat her and I think she has a walking and speaking problem.
CK: Okay, alright then, no problem.
JP: I just asked her to sit in my chair, then I was standing all the time because it was two stops she wanted to get off."
As is apparent from that transcript, the appellant spoke English as a second language, less than perfectly, and with an Indian accent. He gave evidence that passengers often had difficulty understanding him because of his accent.
On the afternoon of 25 February 2011, in the execution of a search warrant, a detective senior constable and around four other officers attended upon the appellant's house and seized some of the appellant's clothing. The execution of the warrant was video-recorded, and during the process, the appellant was asked and answered questions about what had occurred the previous day (having been told that he did not need to say anything but that anything which he did say would be recorded and might be used in evidence). The appellant was cross-examined as to the disparities between his testimony to the Court in 2013 and what he told police the day after the incident. During that search, there were these questions and answers:
"Q. ... [S]o you are not allowed to have passengers inside the guard compartment, is that right?
A. Yes.
Q. Okay, so what happened - you said she was having trouble?
A. Yes, and she said, 'I would like to sit there, so could you please help me?' and I said, 'Yes.' Normally - sometimes it is permissible for aged people, or people with troubles - if they are being harassed or abused on the train, so we help them up to their destination. I asked the lady, 'Where you want to?' 'Wentworth Falls'. She was sitting there during all that time. I was stick to the door. Only the one person now that I'm thinking because my boss ring me at night when I'm finished my job. He said, 'Any complaint or assault or anything?' And I said, 'No complaint'."
There were two other documents which dated, or purported to date, from the day. One was a "Guards Report of Late Running Trains". The evidence was that it was standard procedure for the form to be completed when a train ran late (as the train on 24 February 2011 was). The appellant completed it, lodged it with his employer and kept a carbon copy. On it he had written "Train is late as slow running train after Springwood. Assist to disabled passenger". The appellant also kept a diary at home with work-related information in it, including overtime he had worked. The page for 24 February includes the words "late train to Katoomba 12 mins and assist disabled girl to WWF".
To summarise the near-contemporaneous evidence dating from within 24 hours of the complainant's train trip, there were, first, complaints to her father and mother. Secondly, there was an extensive interview by the complainant with a police officer, which was recorded. Thirdly, there was a conversation between the appellant and his RailCorp supervisor, which was recorded. Fourthly, there was a conversation with the police and the appellant during the execution of the search warrant, which was video-recorded. Fifthly, there were two documents in the appellant's hand - the late train slip, and his personal diary. Finally, there was CCTV footage from some of the stations on the line, including footage clearly showing the complainant entering the carriage (through the double-doors next to the guard's compartment). They shook hands as the complainant entered the train. The CCTV footage does not show the complainant leaving the carriage, but it does show her waving, most likely to the guard, as the train pulled out of Wentworth Falls.
The DNA evidence
On 30 May 2011, the appellant was arrested for sexual assault. As was his right, he declined to participate in an interview. He did provide a buccal swab from which his DNA could be obtained.
Expert evidence of an analysis of DNA recovered from the items of clothing taken from the complainant was tendered at trial. It included DNA testing using the "Y-filer system". There was evidence that that system, which targets the gender-determining chromosome of the male:
"can be particularly useful in a case where the DNA recovered from an item is a mixture of both male and female DNA. As females do not possess a Y Chromosome (only X chromosomes) this difference is exploited in order to target only the male DNA in a male/female DNA mixture".
The evidence was that the appellant, or male relatives on his paternal line, and approximately 1 in 750 unrelated males in the general population could not be excluded from DNA found in the inside upper front of the complainant's underpants. Further, DNA recovered from the outside front right of her bra, and inside right breast area of her t-shirt had the same profile as one of two other contributors to the DNA recovered. The expert evidence was that "this Y-minor profile is expected to occur in approximately 1 in 130 million individuals in the general population." The complainant's DNA was also found on the outside from left of the bra, and the inside left breast area of her T-shirt, together with other DNA, which was "too weak and too complex to determine the profiles of the individual contributors".
There was no challenge to the DNA methodology used, or the chain of custody. The defence case accepted that the appellant's DNA had been found on the complainant's clothes. The defence case was one of innocent transfer, it being common ground that the complainant had been in the guard's compartment that afternoon.
It will be seen that the identification of the appellant's DNA on the inside of the appellant's underpants, and on the outside of the right cup of her bra and the inside right of her T-shirt, but not on the outside of the left cup of her bra or the inner left of her T-shirt, is consistent with what the complainant said in her recorded interview the day after the incident.
The evidence at the trial
The near-contemporaneous evidence referred to above, and the expert DNA evidence, was adduced at the trial. The complainant's evidence in chief took the form of the recordings of her interviews (this is the subject of ground 2), and she was cross-examined by video-link in the afternoon of the second day of the trial. There were some inconsistencies in the complainant's evidence, which are the subject of the first ground of appeal, and addressed below when dealing with that ground.
The appellant gave evidence and was cross-examined on 6th and 7th days of the trial. There were inconsistencies between his testimony at trial, and what he had said in the 24 hours immediately following the incident.
The appellant maintained in evidence in chief that he was new on the line, that he was not sure which side the platforms were on, and that while he was looking out the wrong side at Lawson (a station between Springwood and Wentworth Falls), the complainant had entered into his compartment. He said that he thought that "she is under stressful condition or under the influence of any intoxicating material or maybe medication". He found that she was travelling to Wentworth Falls, two stations further along the line, and let her stay in his compartment, because the carriage was full, and because it was "only two stops" and "as a female passenger and mostly she was fretting, I tried to help her, let her sit in my cab". He denied touching her in any way, and all other aspects of the complainant's account. He said that he did come slightly into contact with the complainant as he was checking the doors.
He was cross-examined:
"Q. You were inquiring, 'Look, why did you come here?' Effectively you have told her that she's not allowed in there, and suddenly she's here and you were surprised by that, and you're asking, 'Look, why are you here?'?
A. WITNESS: Yes.
Q. Is that a fair summation of your evidence, sir?
A. WITNESS: Yes."
The appellant accepted that he was aware that passengers were not allowed to travel in the guard's compartment, and that doing so could result in disciplinary proceedings and retraining. The appellant accepted that it would have been important to record the fact that the complainant had entered his cabin without permission in his report of the late running train, and that although he had recorded "assisted disabled passengers" he had not done so, either in the late train slip, or in his personal diary.
He was cross-examined by reference to what he had said that evening to the duty controller, and the following afternoon to the police officer, about how the complainant had come into his cabin. He accepted that his memory then would have been better than it was more than 2 years later. He gave this evidence:
"Q. So you say that when you were talking to Mr Kalogeropoulos you were talking about a different time that you asked her [to] sit down, is that right?
A. WITNESS: Yes. "Sit there" simply.
Q. But you didn't say anything at all to Mr Kalogeropoulos about the fact that it was her, on your version, who came into your cabin without permission, did you?
A. WITNESS: It was because the lapse of time and I was just rushing back and maybe it didn't recall me.
Q. The lapse of time - the six hours that had elapsed between Springwood station and Chris Kalogeropoulos - you say that's the reason that you didn't say anything to him about her effectively coming into your cabin without permission?
A. WITNESS: Yes.
Q. On your version you specially said you're not allowed to come in, hadn't you?
A. WITNESS: Yes.
Q. You don't think that would have been an important piece of information to tell the duty controller?
A. WITNESS: Maybe I missed that off."
The appellant said that he asked the complainant whether she was going to Katoomba. When asked why, he said:
"A. WITNESS: If she want to go to Katoomba - say "Yes" then I should have seen to report to Katoomba station manager about this lady.
Q. You didn't take her to the station master at Wentworth Falls did you, when you got her off?
A. WITNESS: No, no.
Q. Is it the case that you tell us about this conversation where you raised the station, Katoomba, because you heard [the complainant's] evidence that you had invited her get off the train at Katoomba with you - is that why you tell us about this?
A. WITNESS: No."
The verdict of the trial judge
Counsels' addresses concluded on 30 May 2013. The trial judge gave her decision at 10am on 31 May. Her reasons occupy 45 pages. Her Honour accepted that the complainant was the only Crown witness capable of giving direct evidence about the central events in the trial. Her Honour, correctly, stated that it was not necessary for her to accept the evidence of the appellant in order for there to be a reasonable doubt, and that no inference could be drawn against him from his failure to participate in an interview after his arrest. Her Honour summarised the evidence, and then, at pages 33-34, found the appellant guilty of counts 1-4. Her Honour then gave reasons for those findings.
Her Honour found that the complainant was honest and accurate in important matters, and that although there were discrepancies, they were not such as to cause her to be doubted on important matters. Her Honour said, of the lengthy video-recorded interview the complaint gave the following day to be "compelling", and "particularly for someone who is disabled".
Her Honour found that the complainant's evidence was corroborated by the DNA found on the inside front of her underpants, and on the right cup of her bra. The fact that no DNA was found on the left cup of the complainant's bra was consistent with her account, that she was squeezed on the right breast on the outside of her clothing.
Her Honour said of the complainant's disability this:
"I find it's more than obvious from the way she appears, her mannerisms, her speech and the way she behaved during her interview with police and whilst giving evidence before me of that fact. She remained adamant at all times she told the police the truth and she told this Court the truth and I could find no reason to disbelieve her."
In relation to the complainant's waving to the appellant as the train left Wentworth Falls, her Honour said:
"The fact that she turned and waved, either to him or to other train passengers and was not seen to run from the station does not mean that what she says occurred did not occur. Her demeanour is consistent with her intellectual disability, perhaps it took her time to process what had occurred. What she did of course was to articulate and demonstrate as best she could to those who love and support her what had occurred to her and to do so consistently from then on."
Her Honour found the appellant's version of events "simply implausible". Her Honour relied on the contradiction between his evidence in court and when he was first spoken to by police. Her Honour did:
"not accept for one moment that he initially did not find this young woman significantly intellectually disabled. One only has to look at her movements to determine that that is a possibility. To suggest that she was someone under the influence of either alcohol or drugs is laughable, she had the appearance of a young girl, not someone affected by alcohol. I find he knew full well she was disabled as evidenced by his notation to that effect in the delay slip and his diary."
Her Honour said, more generally:
"I had ample opportunity to view [the appellant] in Court throughout the trial and whilst he gave evidence. His responses, in cross-examination in particular, I find were clearly responses when under pressure. There were pregnant pauses before he answered questions, consistent with someone attempting to answer in a way as to minimise the risk of inculpating himself. He was not a particularly impressive witness."
It is convenient to defer, until dealing with ground 3 of the appeal, what her Honour said as to the appellant's good character.
Sentencing took place on 30 August 2013; the sentencing remarks and the Crown's challenge to them are addressed in the part of these reasons dealing with the Crown appeal.
Ground 1: Her Honour's verdicts were unreasonable within the meaning of s 6(1) Criminal Appeal Act 1912.
The trial was conducted without a jury, on the application of the defence which was not opposed by the Crown, pursuant to Criminal Procedure Act 1986 (NSW), s 132. Her Honour's verdict has the same effect as that of a jury: s 133. It was common ground that the principles identified in M v The Queen (1994) 181 CLR 487 at 493 and SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] to the challenge under s 6(1).
The question is whether upon the whole of the evidence it was open to her Honour to be satisfied beyond reasonable doubt that the appellant was guilty. That requires this Court to make an independent assessment of the evidence, both as to its sufficiency and its quality: SKA at [14]. As noted above, the sufficiency of the Crown evidence was not in dispute, and as much is plain from the evidence of the complainant. What was put in issue on this ground of the appeal was whether it was open to her Honour to be persuaded beyond reasonable doubt as to the events described by the complainant.
It is quite plain that it was open to her Honour to be satisfied beyond reasonable doubt. The essential question was, as her Honour appreciated, whether the complainant's testimonial evidence persuaded her of the appellant's guilt of the offences charged to the criminal standard. Even the limited extracts of the transcript of her testimony, given 24 hours after those events and reproduced in these reasons, convey very clearly an intellectually impaired young woman, with the mental age of a young girl, doing her best to describe, accurately and truthfully, what had occurred. Her evidence on matters of substance was not shaken in cross-examination. Her complaints were very substantially consistent and - save for the indecent assault the subject of the fourth count - made at the first opportunity. And the DNA analysis - obtained months after that interview was given - strikingly supports her testimony, especially in respect of her descriptions of the differences between the appellant's assaults when he squeezed her right breast (under her shirt) and left breast (outside her shirt).
The appellant's submissions focussed on what was said to be the highly implausible nature of the complainant's account: that the guard forced her into his compartment, in full view of other passengers on a crowded train, that the offences could have been seen by those passengers through the window of the compartment, that the complainant's statement that she had been penetrated for 15 minutes was highly improbable, having regard to the length of the journey and the guard's duties on the platform when the train had come to a stop, and that in general her evidence in cross-examination was replete with statements that she could not remember. Particular attention was given to the criticism that the guard kissed her in the public part of the carriage, and her waving to the guard as the train left Wentworth Falls station.
It is certainly true that the complainant answered many questions in cross-examination by "I don't remember". It is also true that there were some inconsistencies in the accounts that the complainant gave, however, the appellant's submissions overstate this. Some of the inconsistencies are likely the product of ambiguity in the questions and answers, or misunderstandings. The language used by the complainant is consistent with her being kissed immediately after entering the guard's compartment, as well as in the passenger area of the carriage. It was open to the trial judge to conclude that her waving to the guard as the train left Wentworth Falls, on which the appellant relied strongly, is far from decisive. Early in her interview the following day, she said that he said "Goodbye, goodbye, sweetheart" and "I walked, I walked to the, I walked, I was walking past the, the, near the toilets and I waved to him. I, I didn't mean to, um, I didn't mean to um I didn't, I didn't mean to". That unprompted answer, given without the benefit of seeing the CCTV footage, tends to confirm that the complainant was, once again, doing her best to recall precisely what had occurred. Other aspects of her evidence suggest a clear and episodic memory of the events. For example, when asked where she went after getting off the train, she answered "I walked up the bridge the railway, the, the bridge at the station" ... "I was going upstairs at the station and downstairs on the other side of the bride. Then there's a bridge at Wentworth Falls train station", "I walked home down the, near the bush walking down near the bush" ... "and I got stuck at near the streets, near my street near Taylor Street. And ... after when the cars went past I went straight across down to another bush where there's a, there's a walking track ... and I walked after the walking track I walked home". The episodic and plainly genuine recounting of events by the complainant no doubt contributed to the trial judge's assessment of the interview as "compelling".
Moreover, some inconsistencies are almost inevitable in any case when the same witness gives evidence over a period of years of the same events.
The complainant made consistent complaints essentially immediately. Those complaints were corroborated by the DNA consistent with that of the appellant being found in her clothes precisely where it might be expected to be found consistently with her complaints: on the inside of her underpants, on the outside of the right cup of her bra, on the inside of the right of her T-shirt, but not on the left cup of her bra or the left side of her T-shirt. In relation to the fourth count, the trial judge said that:
"Her evidence has an extraordinary ring of truth to it in as much as she is a cognitively impaired young woman doing her best to describe a man, this accused, masturbating in front of her at a time when he had an erection. She could feel that erection, 'it felt like cardboard'."
In contrast, the inconsistencies in the appellant's cases were substantial. First, there is the serious discrepancy between what he said to the railway controller, and to the police, within 24 hours of the incident, that he had invited the complainant into his cabin, and his testimony at trial that the complainant had entered the cabin against his instructions. Secondly, his evidence at trial that he did not at first appreciate that she was intellectually disabled was contrary to what he said, and wrote, at the time, and there is no reason to doubt what the trial judge said, and what was the unchallenged psychological evidence, that as much would be obvious almost immediately. Thirdly, it is very difficult to reconcile the appellant's testimony with DNA consistent with his own being found on the complainant.
Of course, the primary judge was much better placed than this Court to assess the credibility of the key witnesses. Her Honour saw them both give evidence (the complainant via a video-link), over a period of hours in the case of the complainant, and eight days in the case of the appellant. It is plain that there were matters which do not appear in the written record - including the pauses of the appellant when being cross-examined noted by her Honour.
This Court must itself scrutinise the whole of the evidence in order to assess the reasonableness of the guilty verdicts. However, as Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [23]:
"However, in making that assessment, the Court would properly have been conscious of the fact that there were aspects of the case that would not be reflected adequately in the written record."
That echoed what had been said in M v The Queen (1994) 181 CLR 487 at 493:
"the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
This is a case where what was said by Bathurst CJ in W v R [2014] NSWCCA 110 at [158] is entirely apposite:
"This was a case where the trial judge's assessment of the complainant was vital: see MFA v The Queen at [23]. It was open, in my opinion, for the trial judge to be satisfied of the reliability of the complainant on the critical issues having seen her give evidence, notwithstanding the matters to which I have referred to above. ... It seems to me that any doubt which may exist as to the reasonableness of the verdict is resolved in this case by the advantage the trial judge had in seeing the complainant give her evidence."
Orally (but not in writing), it was submitted that the Court should view the video-recording of the complainant's interviews, so as to better assess the hesitations in her evidence, and to observe the difference between her evidence in chief and her evidence in cross-examination.
However, what was not submitted was that there was some particular aspect of the video-recorded evidence that needed to be seen because of a deficiency in the transcript. Indeed, counsel had not himself viewed the video-recorded evidence.
French CJ, Gummow and Kiefel JJ said in SKA at [31]:
"It is to be expected that if there is something which may affect a court's view of the evidence, which can only be discerned visually or by sound, it can and will be identified. Absent this purpose it is not possible to conclude that a court is obliged to go further and view a recording of evidence. There must be something in the circumstances of the case which necessitates such an approach."
It may readily be inferred that the manner in which the complainant gave evidence in chief was different from her evidence under cross-examination. That is the common experience of witnesses in court. As much may be assumed, favourably to the appellant. It does not detract from the proposition that it was open to the trial judge, enjoying the considerable advantages mentioned above, to be satisfied beyond reasonable doubt of the truth of the complainant's testimony on material matters. Given the way in which the submission was advanced, it is neither necessary nor appropriate to view the recording of the complainant's interview, and we have not done so.
Leave should be granted to raise this ground of appeal, but it must be dismissed.
Ground 2: Her Honour erred in permitting the complainant to give evidence in the manner provided for by Chapter 6, Part 6 Criminal Procedure Act 1986, without first satisfying herself that the facts of the case may be better ascertained, if the person's evidence is given in such a manner, as mandated by s 306P(2) Criminal Procedure Act 1986.
Early in the trial, there was the following exchange:
"CROWN PROSECUTOR: Your Honour [the complainant] is in the CCTV room. The reason that, your Honour's heard that she was 22 years old in 2011, she's now 24 years old. The Crown says that she fits under the definition of vulnerable person under section 306M of the Criminal Procedure Act on the basis of her cognitive impairment and I understand that that's not in dispute. Your Honour will hear some evidence about it during the course of the trial.
HIGGINS: That's correct.
CROWN PROSECUTOR: As a result, the way that the Crown proposes to call substantially her evidence-in-chief, is by playing two pre-recorded interviews and she's entitled to do that under section 309S(1)(a), being a vulnerable person. There is, as your Honour's clearly aware that there's a presumption that everyone's competent to give sworn evidence. This might be a case though that your Honour might need to satisfy yourself that [the complainant] is competent to give sworn evidence. Certainly in my discussions with her, she's been able to express what would happen if she was to tell a lie in court and she understands the obligation to tell the truth. That just in terms of understanding an affirmation and an oath, it might be that your Honour gets to make some inquiry of her.
HER HONOUR: Can we turn the screen on. Has she got a support person in the room?"
The Crown thereafter relied upon the mechanisms available under ss 306U and 306ZB of the Criminal Procedure Act 1986: a pre-recorded interview was put into evidence, and the complainant was cross-examined via closed-circuit television.
This ground turned on s 306P(2) of the Criminal Procedure Act 1986, which provides:
"To the extent that this Part applies to cognitively impaired persons, this Part applies (unless a contrary intention is shown) in relation to evidence given by a cognitively impaired person in the manner provided by this Part only if the court is satisfied that the facts of the case may be better ascertained if the person's evidence is given in such a manner."
There was no dispute that the complainant was a cognitively impaired person for the purposes of the section. The gravamen of the ground is that only if the judge turned her attention to the issue and was satisfied that the facts of the case might be better ascertained by that method, was the power available. It was said that this was a "fundamental" defect in the trial, which required the verdict to be quashed and there to be a retrial.
There is nothing in this ground. There is no requirement that the state of satisfaction required by s 306P(2) must be expressly recorded by the judge. It is very difficult to resist the conclusion that, very shortly after the trial judge confirmed that the complainant knew the difference between truth and falsehood, her Honour must have been satisfied, had her attention been directed to the point, that the course proposed by the Crown and to which the defence acquiesced was the better course for ascertaining the facts of the case. However, it is not necessary to resolve this ground of appeal on that basis. That is because s 306ZJ of the Act is in the following terms:
"306ZJ Validity of proceedings not affected
(1) The failure of a vulnerable person to give evidence in accordance with a provision of this Part does not affect the validity of any proceeding or any decision made in connection with that proceeding."
That section replicated an identical provision in the Evidence (Children) Act 1997 (NSW) and was originally introduced in the Crimes (Child Victim Evidence) Amendment Act 1990 (NSW) as s 405I of the Crimes Act 1900. As the Crown submitted, the effect of that provision is a complete answer to the ground. The appellant contended that there was a distinction between validity and error. It was put as follows:
"We don't contend it is invalid but [it is] an appeal point. They are distinct legal propositions. .. [We do not regard] the proceedings as invalid. We do say that they were affected by error such that the appeal should be upheld."
That submission must be rejected. Not only the proceedings, but also the decision to permit the complainant's evidence to be given in the manner that it was, were valid. In this context, it is plain that the "validity" mandated by statute denies the availability of any error which would attract the operation of s 6 of the Criminal Appeal Act. The decision to permit evidence being adduced in accordance with ss 306U(1) and 306ZB(1) without the formation of the opinion required by 306P(2) is not susceptible to challenge.
It follows that leave should not be granted (leave is required under rule 4 of the Criminal Appeal Rules, this point not having been taken at any stage during the trial) to permit it being raised on appeal.
Ground 3: In considering whether the appellant had committed the offences charged, as well as his credibility, her Honour erred in giving the appellant's prior good character less weight, by taking into account an irrelevant consideration, namely that sexual offences are often committed by persons of good character.
The hearing took place without a jury; nevertheless, her Honour identified the approach she would take to various matters, in a way analogous to directions to the jury. That included her approach to the evidence of the good character of the accused. Her Honour said this:
"The fact that the accused was a person of good character is relevant to the likelihood of him having committed the offence as alleged. I can take into account his good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do or not is a matter for me. I can use the evidence of good character to support his credibility. I am entitled to reason that a person of good character is less likely to lie or give a false account, either in giving evidence or giving an account of events in answers to questions asked by him by police or investigators. Whether I reason in that way is a matter for me to determine. None of this means that good character provides the accused with some kind of defence, it is only one of the many factors which I am asked to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused. What weight I give to the fact that he is a person of good character is completely a matter for me, but it is a matter I should take into account."
That occurred at page 27 of the transcript of 31 May 2013. At pp 33-34, her Honour found the accused guilty as charged of counts 1, 2, 3 and 4. Her Honour thereafter gave her reasons for those findings. Her Honour addressed the testimonial evidence, the DNA evidence which corroborated it, the timing of the complaints by the complainant, the interview on the following day (which her Honour regarded as a "compelling interview"), and her statement that "there are aspects of her evidence which have an extraordinary ring of truth to them". Her Honour dealt with the contradicting testimonial evidence of the appellant, regarding him as "not a particularly impressive witness", and concluding (at T45) that:
"There can be no doubt he is a person of otherwise good character, unfortunately persons of otherwise [good] character do commit crimes and often crimes of this very type. Whilst it is a matter he is entitled to have taken into account as the law requires, I find as a matter to be given less weight than would otherwise be the case. I do not doubt for one moment that he might be regarded by others as a caring and kind individual who is prepared to contribute to society in a significant way. That does not alter the fact that I find myself satisfied beyond reasonable doubt that he has committed the offences for which he has been charged and I, accordingly, have found him guilty."
It was submitted that error was shown by her Honour's taking into account an irrelevant consideration, namely that offences of this type are committed by persons of good character.
It is not necessary to identify how this submission was elaborated in writing, and orally. It may be acknowledged that her Honour's wording about giving good character "less weight than would otherwise be the case" is less than ideal, reflective of the fact that her Honour gave lengthy ex tempore reasons for conviction immediately after the conclusion of the trial. However, it is plain that her Honour was not making a statement about the way in which good character is to inform the assessment of competing testimonial evidence. Rather, her Honour was explaining the process by which the good character of the appellant did not displace the conclusion that, based on other evidence, he was guilty of the offences with which he had been charged. This ground of appeal should be dismissed.
Orders on the appeal against conviction
For those reasons, there should be a grant of leave in respect of ground 1 and (to the extent necessary) ground 3. Leave should be refused in respect of ground 2, and the appeal should be dismissed.
Crown Appeal
In support of the appeal the Crown brings under s 5D of the Criminal Appeal Act 1912 (NSW) two grounds of appeal are relied upon. The first, that her Honour erred by ordering the sentences on each of the four counts upon which the respondent was convicted to be served concurrently and, the second, that each of the sentences was each manifestly inadequate. (When dealing with the Crown appeal, we refer to Mr Panchal as the respondent.)
The first ground of appeal alleges error in the application of the principle of totality. The Crown submitted that although an order for partial concurrency in respect of some counts of indecent assault would have been unassailable, in particular for the assaults charged as Counts 2 and 3 on the indictment, to order that they be served concurrently with each other, and with the aggravated sexual intercourse without consent charged as Count 1, failed to take into account the separate and distinct sexual offending for which the respondent was convicted.
The second ground of appeal invites this Court to conclude that the individual sentences imposed were unreasonable or unjust by reference to the sentences themselves without the need for the Court to identify any particular error in the process of reasoning that led to that result.
The respondent submitted that the first ground of appeal is really a particularisation of the challenge to the effective sentence as manifestly inadequate, in the sense that if this Court finds that the sentence imposed on Count 1 does not adequately reflect the totality of the respondent's offending, not only would the order for total concurrency have been made in error, but it would also follow that an effective sentence of 5 years imprisonment with a non-parole period of 3 years was erroneously lenient.
While that might be so, the limiting purpose associated with the bringing of a Crown appeal most recently identified by the High Court in Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 necessitates that the grounds of appeal are dealt with separately.
The further facts found for sentencing purposes
The sentencing judge was satisfied that the respondent was aware that the complainant was cognitively impaired. She also found that he targeted her opportunistically with that knowledge in the expectation that she would not be able to convey to others what he intended to do to her, or in the event that she was able to do so, she would not be able to express herself sufficiently clearly that others could understand her. Her Honour was also satisfied that once the complainant was under the respondent's control in the guard's room she was defenceless without any opportunity to seek help.
Her Honour described the assaults as "degrading, humiliating and unprovoked" (which we take to mean wholly uninvited) and the respondent's conduct as "despicable".
Her Honour found that the impact of the sexual and indecent assaults on the complainant was substantial. She had become reclusive and withdrawn despite attending counselling to assist her to process what had happened to her. More generally she suffered a significant mood change from a happy young woman who, with the courage of her independence, was able to attend a disability centre by train without a chaperone to a moody angry and increasingly aggressive young woman who blamed her family for failing to protect her. At the time of sentence she had not undertaken any train travel. She also exhibited behavioural traits reactive to the assaults including obsessive washing and a deterioration in her personal hygiene.
Her Honour noted the need for the sentences to reflect general deterrence in order that rail officers who have the obligation of protecting train travellers (which we interpret to include other transport officials who deal with the public) appreciate the trust reposed in them and that those who offend, as this respondent has offended, will face condign punishment.
In dealing with the respondent's subjective circumstances, the sentencing judge noted he was 50 years of age at the time of the offences and 52 at the time of sentence. He had no criminal record. The respondent and his wife migrated to Australia in 2001 from India and he has family in both countries including a disabled sister who he assisted before migrating. The respondent also has a friend with a disabled son who he would look after to allow the boy's parents to socialise when they were visitors in the respondent's family home. Her Honour also noted that the respondent had provided support for an organisation established by his friend to support families with disabled children within the East Asian community in Australia. He had also contributed to other charitable organisations and was a volunteer at community events.
As the respondent did not give evidence on sentence accepting responsibility for the assaults there was no finding of remorse or contrition. Her Honour made no finding as to the respondent's prospects of rehabilitation.
The first ground of appeal
It is well recognised that, subject to the application of established principle, questions of accumulation and concurrency are discretionary and that sentencing judges may exercise their discretion in differing ways without either being wrong: LG v R [2012] NSWCCA 249 at [24]. It is equally as well recognised that whilst separate offences committed in the course of the one criminal episode may point to concurrent sentences being imposed, this will not be the inevitable sentencing result. The critical question in every case is whether an order for concurrency is productive of a sentence that reflects or comprehends the totality of the criminality involved in a single episode of offending or a single course of criminal conduct.
In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] Howie J said:
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
The question in any given case as to whether there ought to be an order for concurrency in whole or in part, calls for a discretionary judgment. In JT v R [2012] NSWCCA 133 at [71] Rothman J said:
"The exercise involved in determining accumulation and concurrence and the application of the principles of totality are inconsistent with the proposition that one single correct answer will be derived in every circumstance by every judge. The application of the principle of totality is an exercise of discretion, intuitive or instinctive, and cannot be conducted arithmetically..."
The Crown accepted that this case involved a single episode of sexual offending, in the sense that it commenced when the complainant was lured into the guard's cabin and ended as the train drew into the complainant's station. However, the Crown submitted that the offences involved sufficiently different levels of assaultive conduct, with the respondent persisting in his sexual mistreatment of the complainant despite her efforts to stop him, that partial accumulation of the separate sentences imposed referable to that conduct was necessary.
As the respondent emphasised in submissions, her Honour was acutely conscious of the differing nature of the offences but nonetheless reasoned to the conclusion that because the indecent assaults occurred at the same time, or almost the same time, as the objectively more serious sexual assault, an order for complete concurrency was appropriate. This was said by counsel to be an entirely orthodox approach where multiple offences of a sexual nature are part of a continuous episode of sexual offending against one complainant. R v Dousha [2008] NSWCCA 263 was relied upon to support that submission. That case concerned an appeal against the severity of sentences imposed for multiple counts of indecent assault against two children and two counts of sexual intercourse against the same two children. Concurrent sentences were imposed in respect of three of the four counts of indecent assault against one of the children which were partially accumulated on the fourth count of indecent assault, with that sentence in turn partially accumulated on a count of sexual intercourse with a child under the age of 10 years. The sentences for three of the four indecent assaults were ordered to be served concurrently as they involved the same child and were committed on the same day in the one incident. On the applicant's appeal against the severity of the effective sentence imposed, that finding was not under challenge. At [50] Fullerton J observed that the concurrency in the sentences of the three counts of indecent assaults was explained by them being a continuation of the one episode of offending albeit involving touching that was progressively more invasive. Nothing in that judgment is authority for the proposition that sexual offences of a different kind, or the same kind but committed in a different way as part of a continuum of conduct, should attract an order of complete concurrence on sentence.
Ultimately the question of accumulation and concurrency must be determined by reference to the principle of totality. The question for this Court on this appeal is whether that principle has been breached amounting to appellable error in the sentencing exercise.
The respondent submitted that separate fixed terms of imprisonment of 3, 6 and 9 months on each of the three counts of indecent assault reflected the objective seriousness of that offending in the context of his offending overall. It was then submitted that it was open to her Honour to be satisfied that the respondent, having been sentenced to full-time custody, should not to be required to undergo additional punishment, by partially accumulating the fixed terms on each other and with the sentence on the sexual assault count.
We do not regard that submission as to the point. Having determined that a sentence of imprisonment was warranted for the offending the subject of each of Count 2, 3 and 4, because they were not isolated instances and, so far as the fourth count was concerned, because it was in her Honour's view "a particularly distasteful way to behave towards the young woman, intellectually disabled or not" (findings which were not challenged on the appeal there being no appeal against the severity of sentence), her Honour was only then obliged, in accordance with Pearce v R [1998] HCA 57; 194 CLR 610, to determine questions on concurrency and accumulation referable to the totality principle. In applying that principle to this case the focus is not on the fact that sentences of imprisonment have been imposed but whether, having been imposed, an order for concurrency with each other and with the count of sexual assault adequately is productive of a sentence that comprehends the total of the respondent's criminality.
We accept that the conduct the subject of Counts 2 and 3, each involving touching of the complainant's breasts inside and outside her clothing within the same episode of touching of that region of her body and attracting fixed terms of imprisonment of respectively 3 and 6 months, could properly have attracted an order of concurrency. However, the indecent assault which involved the respondent masturbating in the region of the complainant's groin with his left hand while forcing the complainant towards him in the process was an indecent assault of an entirely different order of objective seriousness. We are satisfied the criminality inherent in that conduct, occurring as it did as the last assault in a series of assaults, could not adequately be accounted for by an order that it be served wholly concurrently with the sentences for Counts 2 and 3. We consider that an order of partial accumulation ought to have been made. Applying the same reasoning, we are also satisfied that the effective term of imprisonment for the three counts of indecent assault should also have been partially accumulated on the sentence for the count involving sexual intercourse without consent.
The second ground of appeal
The error in her Honour's application of the principle of totality will result in re-sentence subject only to the exercise of the residual discretion. It is necessary, however, to consider the challenge to each of the sentences as manifestly inadequate since, if the Crown fails to make good that challenge, the re-sentencing exercise will be undertaken referable to the sentences that were imposed by the sentencing judge.
The maximum penalty for each of the offences, respectively 20 years with the standard non-parole period of 10 years for the aggravated sexual assault contrary to s 61J of the Crimes Act and 7 years with a standard non-parole period of 5 years for each of the counts of aggravated indecent assault contrary to s 61M(1), reflects the seriousness with which the legislature regards offending of this kind. That the cognitive impairment of a complainant is a feature of sexual offending attracting a heavier maximum penalty and a standard non parole period is an expression of the legislature's legitimate concern that specific protection be afforded to the most vulnerable as well as providing heavy sentences for those who would prey upon them and to deter others from doing likewise.
The maximum penalties and the standard non-parole periods for each of the four counts for which the respondent was convicted operate as a guide against which an appropriate sentence will be imposed in a sentencing exercise that involves the instinctive synthesis of a range of factors bearing upon both the objective seriousness of the particular offending and the subjective circumstances of the offender.
The Crown submitted that none of the sentences imposed after trial in this case adequately reflect the objective seriousness of the respondent's targeted offending against a vulnerable and defenceless young woman in breach of his position of trust as a train guard in public service, even if full weight had been given to his subjective circumstances, including his previous good character. The Crown also submitted that although her Honour recognised the need for the sentences to satisfy the requirement of general deterrence, the sentences actually imposed, in particular the sentence for the aggravated sexual intercourse without consent comprised of a non-parole period of only 3 years, failed to meet that sentencing objective and that her Honour's sentencing discretion has also miscarried for that reason.
The respondent submitted that the Court would not be so satisfied. Further, it was submitted that the Crown has failed to demonstrate that the sentences imposed, either collectively or individually, were so far below the range of sentences which, justly and consistently with sentencing standards, could be imposed for the offences of which he was convicted, that this Court's intervention is not warranted.
In support of the submission that a review of previous authorities of this Court demonstrates that the sentence imposed was not manifestly inadequate senior counsel for the respondent referred only to R v Slack [2004] NSWCCA 128. In that case the standard non-parole period did not apply and neither cognitive impairment nor physical disability was the feature of aggravation alleged. It is of no utility for comparative purposes.
It was not submitted by either counsel that the offending in this case could be meaningfully compared with the other offences committed in circumstances of aggravation, given that the features of aggravation provided for in s 61M(3) of which cognitive impairment is one, and the much larger category of aggravating circumstances in s 61J(3) of the Crimes Act differ so markedly from each other. The Judicial Commission's sentencing statistics provided by the Crown in the course of the hearing do not provide any meaningful insight into the range of sentences that might be imposed for similar offending for this reason.
Senior counsel also advanced the submission that since the act of sexual intercourse the subject of Count 1 involved digital penetration it was for that reason "vastly less serious". As authority for that proposition, Smith v R [2011] NSWCCA 163 was cited where at [29] per RS Hulme J said:
"I have no difficulty in accepting the proposition that there is no such rule. Nevertheless, confining attention for the moment to the nature of the penetration, there can be no doubt that the digital penetration as it occurred in this case was vastly less serious than many other instances of sexual penetration with which this Court has, from time to time, had to deal. The fact that the Applicant persisted despite the complainant saying his action hurt tends to add to the seriousness of his conduct in that respect but in any judgment as to the severity of that aspect of his conduct it is proper to recognise that the complainant sought solace from him later in the evening after she discovered her own father was absent, and this in circumstances where the Applicant's wife was also in the house."
His Honour's views on that issue are not coincident with other authority in this Court.
In Ingham v R [2014] NSWCCA 123 at [41] Fullerton J (Basten JA and R A Hulme J agreeing) in considering sentences imposed for multiple breaches of s 66A(1) of the Crimes Act said:
"I accept that there is no hierarchy of seriousness for a breach of s 66A(1) with penile penetration at the apex. Other means and mechanisms by which the offence can be committed may, in a particular case, be equally if not more objectively serious. I also accept, as was most recently restated in Simpson v R [2014] NSWCCA 23 at [33]-[34] citing Doe v R [2013] NSWCCA 248 at [54] that there is no authority in this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than other forms of forced sexual intercourse. In Doe at [54] it was stated that:
'... Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness.'"
Conclusion
We are firmly of the view that the individual sentences imposed in this case are unreasonable and plainly unjust having regard to the gravity and sustained nature of the offending and that, subject only to the residual discretion, this Court should move to re-sentence.
Upholding the Crown appeal affords an opportunity for this Court to reinforce the significance of the standard non-parole period as a legislative guidepost where an aggravated form of a sexual offence under s 61J and indecent assault under s 61M is found proved, in particular where the victim is cognitively impaired as is the complainant in this case.
The residual discretion
It was submitted that the residual discretion should be exercised in the respondent's favour because, unlike the sentencing judge, we would be satisfied that he has positive prospects of rehabilitation. Even were we prepared to make that assessment based upon his prior good character and because he has not offended between his arrest and trial, this would not displace the need for re-sentence in this case. The manifest inadequacy of the sentences requires this Court to intervene.
Re-sentence
After taking into account all matters material to the exercise of this Court's sentencing discretion, including the modest weight that can be given to the respondent's subjective circumstances, and after exercising the restraint that attends the re-sentencing exercise in the context of a successful Crown appeal, the objective seriousness of the course of sexual offending against a vulnerable young woman who has suffered substantial harm as a consequence, requires that the respondent be resentenced on each count which, after a partial accumulation, results in an effective sentence of 8 years with a non-parole period of 5 years and 6 months.
We have preserved the sentencing judge's finding of special circumstances, on resentence, principally because of the partial accumulation of the sentences.
The orders of the Court are as follows:
The Crown appeal against sentence is upheld.
The sentences imposed in the District Court on 18 October 2013 are quashed and in lieu thereof the following sentences are imposed:
Count 2: Fixed term of imprisonment for 12 months commencing on 31 May 2013 and expiring 30 May 2014.
Count 3: Fixed term of imprisonment for 6 months commencing on 31 May 2013 and expiring on 30 November 2013.
Count 4: Fixed term of imprisonment for 16 months commencing on 31 July 2013 and expiring on 30 November 2014.
Count 1: Imprisonment for 7 years commencing on 31 May 2014, and expiring on 30 May 2021 comprising a non-parole period of 4 years and 6 months expiring on 30 November 2018 and a balance of term of 2 years and 6 months.
This results in an effective sentence of 8 years with a non-parole period of 5 years and 6 months.
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